When the city of Brookhaven adopted its zoning from DeKalb County shortly after incorporation five years ago, there was apparently a technical glitch in the process that did not carry over approved conditions and variances from the county.

That gap could adversely affect current city property owners, city officials said. On Jan. 23, the City Council without discussion issued a 35-day zoning and development moratorium to hold the status quo until a fix could be made. On Feb. 7, the Planning Commission recommended amending the zoning code to close the gap in the city’s code.

Brookhaven City Attorney Chris Balch.

“The zoning code did not carry over variances and preexisting conditions,” Balch told the Planning Commission Feb. 7. “The better part of valor is to protect” the residents and therefore the amendment to the code is needed, he said. The amendment does not affect the revised Brookhaven-Peachtree Overlay that was recently approved, he said.

The gap in the zoning code was discovered as the city prepares to go to trial as a defendant later this month in a what is known as the Connolly lawsuit, Balch explained. The amended zoning ordinance will now go to the full City Council Feb. 27 when the ordinance is expected to be approved, the technical flaws fixed and the moratorium is expected to be lifted.

Commissioners had no questions for Balch at the meeting. The ordinance the board voted to recommend for approval states that the original ordinance adopting the zoning code for the city of Brookhaven “may not have adequately preserved and continued the conditions, variances and other changes to the underlying code which had been approved by the DeKalb County Board of Commissioners … because there is no express reference to such preexisting approvals, conditions, variances, or other changes to property within the city limits.”

“The possible insufficient inclusion, preservation and adoption of those previous conditions, variances and other changes creates a risk of harm to the citizens of Brookhaven,” according to the ordinance.

The city recently discovered the “potential failure” in the zoning code as it prepares to defend itself in a case slated for jury trial in DeKalb Superior Court on Feb. 28, according to the court’s website.

Steve Pepmiller, who lives on Caldwell Road, sued the city in DeKalb Superior Court on Feb. 23, 2017, just a month after the council voted to rezone to PC-2, pedestrian community, the nearly 4 acres on Dresden Drive in the Brookhaven-Peachtree Overlay District near the Brookhaven-Oglethorpe MARTA station and where the DeKalb tag office is currently located.

Connolly Realty and Investment development firm got the council’s approval to build “Dresden Village,” a 5-story complex with 169 apartments and retail shops on the ground floor despite considerable backlash from residents living in the surrounding neighborhoods. The development would include a six-level parking deck, seven for-sale townhouses facing Caldwell Road and is supposed to also include the Dixie Moon restaurant on Caldwell Road.

In October, the city reported spending slightly more than $8,500 on the Dresden Village lawsuit.

In other action:

At the Feb. 7 meeting, the Planning Commission also recommended approval to authorize the city manager to correct “scrivener’s errors” in the zoning ordinance. Such errors would include misspellings or punctuation errors, Balch explained, and would not change the intent of any policy and legislation approved by the council.

By giving the city manager the authority to correct typographical errors, the City Council would not be required to approve again an ordinance if, for example, a comma was found to be out of place in an approved ordinance, Balch said.

“There is constant debate within staff and the cabinet of where commas belong … we try to make sure the punctuation … carries out the intent of the council,” he said.

“There is no hidden agenda here,” he added. Any changes made by the city manager would not change the intent of the council’s decisions, Balch added.

Dyana Bagby is a staff writer for Reporter Newspapers and Atlanta Intown.